The Possible Ramifications of Pre-Embryonic Personhood

JURIST Guest Columnist Jonathan Will of Mississippi College School of Law says establishing pre-embryonic personhood may still fail to outlaw abortion and may lead to the imposition of restrictions on other reproductive choices such as certain forms of birth control...

On November 8, 2011, citizens of Mississippi will pass judgment on an amendment to the state constitution that defines the term "person" or "persons," for purposes of the state's Bill of Rights, to include human beings from the moment of fertilization, cloning or the functional equivalent thereof. Similar personhood initiatives failed comfortably in Colorado in 2008 and 2010.

Proponents of these initiatives are clear that they intend to challenge the legal underpinnings of the US Supreme Court's abortion jurisprudence. Specifically, the personhood movement emphasizes the language in Justice Harry Blackmun's majority opinion in Roe v. Wade, in which he suggests that if the legal personhood of the fetus were established, the case in favor of the woman's right to choose to have an abortion would collapse because the fetus's right to life would then be guaranteed by the Fourteenth Amendment to the US Constitution. The argument would be that depriving these newly-recognized persons of life without due process would be problematic.

Even if pre-embryonic personhood is established, I am not convinced that the personhood movement will succeed in outlawing abortion. Moreover, while failing to outlaw abortion, the movement may successfully lead to the imposition of restrictions on other reproductive choices, like access to infertility treatments or even certain types of birth control.

Considering abortion, it is useful to imagine ways in which a federal constitutional challenge might arise. If a state constitutional amendment passes, like those put forth in Colorado and Mississippi, at least a couple of things could happen. The state courts could determine that this new understanding of personhood immediately applies throughout the state's existing legislative framework. Once the amendment became effective, a local prosecutor could then put clinics on notice that if they perform abortions criminal prosecutions will follow. This would permit the clinics to challenge the amendment, and certainly as soon as a woman seeks to have an abortion and cannot, a federal constitutional challenge would be ripe.

If, on the other hand, the language of the amendment is deemed to require enabling legislation to put it in motion, first there would be lobbying efforts seeking to shape what such an anti-abortion statute would look like. South Dakota recently attempted to enact anti-abortion legislation, and if their experience is any example, it is far from certain that agreement within the legislature would be reached. Elected officials there struggled with whether the statute should include an exception for rape and, if so, how to define rape. Would only forceful or violent rape count? Would you include statutory rape where a 16-year-old girl has sex with an 18-year-old? What about the drunken encounter in the dorm room after a fraternity party? Then there are issues surrounding whether exceptions should exist where a woman's life or health is put at risk by continued pregnancy. Assuming the legislature agrees on the language of the anti-abortion statute, as soon as a woman seeks to have an abortion and is prevented, again a federal constitutional challenge would be ripe.

Proponents of personhood initiatives are hopeful that when these challenges make their way through the federal courts, the establishment of pre-embryonic personhood will inevitably lead to Roe being overturned. After all, how could a woman's right to choose ever trump a fetus's right to life? This outcome is far from inevitable, however. Even if all 50 states amended their constitutions to say that "life" or "personhood" begins at fertilization, that would not automatically define (or re-define) "person" in the US Constitution.

That said, state constitutional recognition of pre-embryonic personhood may change the nature of the inquiry. In the existing abortion jurisprudence, the US Supreme Court struggles with defining the nature of the state interest involved, referring to it as a "legitimate interest" in protecting "prenatal life," "potential life," the life of the "unborn child," and so forth  something other than protecting the life after birth. As recently as 2007, in Gonzales v. Carhart, the Court stated that "by common understanding and scientific understanding, a fetus is a living organism while within the womb." If a state constitution specifically recognized the personhood of these living organisms, as pre-embryonic personhood would, then the state's asserted interest may be considered more firmly established.

Even if the US Supreme Court acknowledged the state's asserted interest in protecting pre-embryonic life as constitutionally "compelling" (as opposed to merely legitimate as noted Gonzales), the state's ability to impose affirmative duties on private parties to protect that life seems far from certain. As a general matter, even physicians only have a duty to treat (thereby protecting the life of patients) if they voluntarily assume such duty. While the Supreme Court may have been able to avoid this type of inquiry under prior cases, it may be unable to do so in the context of recognized pre-embryonic personhood.

It is possible that the Court will nonetheless continue to recognize a woman's right to choose to terminate her pregnancy as protected under the federal constitution. In doing so, the Court might strike down personhood amendments as applied to abortion, but it may permit states to acknowledge pre-embryonic personhood in other contexts. Fetal homicide statutes have frequently been upheld. What might this mean for other reproductive choices where the competing interest is not as firmly protected by the federal constitution?

Take the fundamental right to procreate as an example. Does this include a right to have access to infertility treatments such as in vitro fertilization (IVF)? After pre-embryonic personhood is established, a state will have an interest in regulating IVF to ensure that these newly-recognized persons are adequately protected. In Georgia for example, a statute was proposed that severely restricted the practice of IVF by limiting the number of eggs that could be fertilized and subsequently implanted. Embryologists lobbied against the statute arguing that it would effectively prevent them from practicing.

What about birth control? Proponents of personhood initiatives suggest that any discussion of potential limitations on access to birth control amounts to fear mongering. But this argument proves too much. If personhood is established at fertilization, then any birth control method that is potentially effective after fertilization (for instance, by preventing implantation) would necessarily be problematic. This would include many common types of hormonal contraception where the mechanism of operations may not be known. Further, while the Supreme Court's jurisprudence on birth control might be clear that a state cannot deny access to all types of birth control, its ability to restrict access to certain types of birth control seems to me to be an open question.

Even if personhood amendments are unsuccessful in their attempt to overturn Roe v. Wade, they may be successful, whether that was the intent or not, in imposing severe restrictions on other reproductive choices. One can only hope that these issues are being considered by those voting on such constitutional amendments.

Jonathan Will is an Assistant Professor of Law and the Director of the Bioethics & Health Law Center at Mississippi College School of Law. He recently coauthored an article for the New York Times, authored an article for the Mississippi Business Journal, and has an upcoming law review article on pre-embryonic personhood. He is a graduate of the University of Pittsburgh School of Law.

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